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Supreme Court's UPS ruling widens scope of accommodating pregnant workers

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The U.S. Supreme Court's revival of a part-time worker's pregnancy discrimination suit against UPS puts employers on notice that they should review their light-duty programs with respect to pregnant women.

One expert said the ruling could result in more such cases making it to the jury trial phase and that more clarity is needed on what constitutes equal accommodation.

In Peggy Young v. United Parcel Service Inc., the part-time driver for Atlanta-based UPS alleged discrimination after she became pregnant in 2006 and was told by her doctor she could not lift more than 20 pounds during the first 20 weeks of her pregnancy, even though UPS requires drivers to be able to lift 70 pounds.

UPS told Ms. Young she could not work under a lifting restriction. She stayed home without pay during most of her pregnancy and eventually lost her employer-provided medical coverage.

She subsequently sued, alleging UPS acted unlawfully in refusing to accommodate her lifting restriction while it had accommodated other drivers who were unable to work for other reasons.

UPS responded that other workers it had accommodated were drivers who had become disabled on the job, lost their U.S. Department of Transportation certificate or had a disability covered under the Americans with Disabilities Act.

In affirming a Greenbelt, Maryland, federal judge's ruling dismissing the case, the 4th U.S. Circuit Court of Appeals in Richmond, Virginia held in 2013 that UPS had a “pregnancy-blind policy” that was a “neutral and legitimate business practice” on its face.

The Pregnancy Discrimination Act “requires courts to consider the extent to which an employer's policy treats pregnant workers less favorably than it treats nonpregnant workers similar in their ability or inability to work,” according to the Supreme Court's ruling. “It requires courts to consider any legitimate, nondiscriminatory, nonpretextual justification for these differences in treatment.”

In remanding the case to the 4th Circuit, the 6-3 majority of the nation's highest court said “there is a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from Young's.”

In a dissent, Justice Antonin Scalia wrote the majority crafted a “new law that is splendidly unconnected with the text and even the legislative history of the ADA.”

Responding to the ruling, UPS in a statement said it voluntarily introduced a policy in January that makes temporary light-duty work available to all pregnant employees with medically certified or other physical restrictions.

The court “split the baby” and took a middle approach, said Lucretia C. Clemons, a partner with law firm Ballard Spahr L.L.P. in Philadelphia who was not involved in the suit.

“The rule isn't that you always get accommodated or never accommodated,” but if an employer is accommodating others who have a similar inability to work, denying the pregnant woman's request for accommodation is discrimination, Ms. Clemons said.

“The court pretty clearly says if you can accommodate all these other people for all these other reasons, why can't you add pregnant women?” she said. “The employer has to explain that, and it has to be a really good reason.”

The court reminded employers that “in some circumstances, pregnancy discrimination can be inferred from the way you treat other workers,” said Barry A. Hartstein, a shareholder at Littler Mendelson P.C. in Chicago.

The ruling “means that a lot more of these cases are going to survive summary judgment and are going to be tried to a jury,” said Camille A. Olson, a partner at Seyfarth Shaw L.L.P. in Chicago.

“It will impact employers who are trying to grapple with the issue” of dealing with workers who do not have on-the-job injuries but need accommodation to perform essential functions of their job, she said.